Proponents of changes to state records law cite 4th Amendment fears

SALT LAKE CITY — The third meeting of a group considering changes to Utah's open-records law exposed familiar divisions between its members, with government officials calling for privacy protections and cost controls while others pushed for openness.

Much of the discussion centered around lawmakers' contention that certain records requests violate their 4th Amendment rights. When a staff member has to comb through a legislator's personal emails to comply with a request, according to Sen. Stuart Adams, R-Layton, that is an unreasonable search of private property.

"I think I have a right to personal thoughts and personal deliberations with whoever I choose to have those with," Adams said. "I just feel a little bit violated."

John Fellows, general counsel for the Legislature, told the working group that legislators want to be able to vet controversial bills privately. He cited what he called the "Bambi barbecue bill," a proposal in the 1990s that would have allowed people to eat roadkill. Fellows said such bills could embarrass legislators if the deliberative process used to formulate them were open to records requests

He also warned that too much openness could lead to more decisions being made behind closed doors and "drive the whole process underground."

Other group members, however, said legislators give up an absolute expectation of privacy when they choose to become public servants.

"You've got to have a little bit of thick skin to engage in public debate," said Deseret News editorial page editor Paul Edwards. "A lot of good ideas come with plenty of criticism."

A recent poll done by political scientists at BYU found that out of four values related to open records, only 2 percent of voters thought legislators' privacy was the most important. During the push to pass HB477, making wide-ranging changes to the Government Records Access and Management Act at the tail end of this year's session, lawmakers frequently cited their own privacy and that of constituents who write to them.

Although GRAMA already contains provisions to protect private information, lawmakers said they feared those measures were inadequate.

But group member Rep. Brian King, D-Salt Lake City, said that as a matter of public policy, public officials should have less of a claim to privacy than an average citizen. He and others say those pushing to "modernize" GRAMA — in part by making text messages and some other forms of electronic communication private — have not proven that changes are needed.

"I just don't feel we need to reinvent the wheel on this issue," King said.

And Sen. Pat Jones, D-Holladay, said opening up the lawmaking process would not bother her. "I don't mind people knowing what my ideas are," she said.

The U.S. Supreme Court weighed in on the 4th Amendment issue last year, ruling that the police chief of Ontario, Calif., did not violate an officer's rights by reviewing his text messages in an audit. The city incidentally found that the officer had been sending sexually explicit messages while on duty.

However, the court declined to say whether all such searches are reasonable.

"The judiciary risks error by elaborating too fully on the 4th Amendment implications of emerging technology before its role in society has become clear," the justices wrote. They said the officer could expect his messages to be private, but that his employer's right to search his physical office also extended into the "electronic sphere."

Group chair Lane Beattie, president of the Salt Lake Area Chamber of Commerce, said he plans to split the 25-member panel into subcommittees to draft recommendations in specific areas — such as legal, practical, financial and technological issues — before the next meeting April 27. He said he expects the group to finish its work in May.

The working group was tasked with proposing changes to GRAMA so the Legislature can replace HB477 in a special session, possibly in June. Legislators repealed the fast-tracked bill last month after public outcry.